The event was chaired by Alun Michael MP, who opened proceedings opining that finding common ground was a more productive process to the usual situation where vested interests get together in their own silos and reinforce their own views. Stakeholders getting together, listening to each other and working out a way forward was much better than leaving it to government which has a huge capacity to get things wrong. So stakeholders should work out what needs to be done and get the law to underpin that with principles. He also mentioned that the panel event was a follow up to a Consumer Focus and creators rights day long event which had explored:

Copyright exceptions

Orphan works

How to smooth the flow of money from consumers to creators

- and associated issues. Then introduced the speakers, inviting Saskia Walzel of Consumer Focus to go first. Saskia opened by explaining Consumer Focus is the statutory watchdog for consumers. They work on copyright licensing, exceptions and enforcement. The work on licensing grew out of their initial work on enforcement.

Consumer Focus are keen for licencing reform and the facilitation of the licensing of legal services in a timely manner. They have found that consumers are broadly supportive of copyright as a framework to ensure creators get a fair share of the revenues flowing from their work. But equally consumers are bewildered by the complexity of copyright and for example the illegality of format shifting.

Historically consumers were not big stakeholders in the detailed archaic rules of copyright. It was relatively difficult for them to engage in infringement, so they didn't need to understand the rules. In the modern world though where the use of a computer connected to the internet results in de facto copyright infringement consumers need to understand and buy into copyright regulations. So Consumer Focus strongly support Hargreaves recommendation for a limited private copying exception.

Saskia said the last major copyright law update in the UK was in 1988 in the time of tape recording machines. Ancient times and therefore unsuitable for the internet age. Consumers expect private copying to be legal. But also accept unlawful copying via peer to peer networks to be controlled.

In a digital age many exceptions intended to benefit creators are now used by consumers e.g. reporting and commenting done by bloggers. So exceptions need to work for consumers as well as creators. Consumers are users of copyrighted materials and share creator needs.

Consumer Focus argue there is a desperate need for a small claims court for copyright disputes. The UK Intellectual Property Office hope to introduce such a system later this year. The cost of litigation under the current system is way beyond the means of most individual consumers and creators. The current system was created for commercial entities, the assumption being they would have the necessary funds to go to court if and when necessary.

Hargreaves conclusions were quite similar to those of the Gowers review in 2006. The primary difference was the Hargreaves concentrated on well functioning markets to support growth and therefore focused on licencing. Consumers and creators are large stakeholders in this. We need to ensure the fruits of consumer spending get back to creators. Creators in the UK often get a very small slice of the pie if any at all. In a bid to address this creator groups have periodically called for levies on consumer technology like ipods. The thinking is that an extra revenue stream can be generated which creators could benefit from. But the flaw in the plan is that it does not address the key problem of the money being soaked up by intermediary commercial agents like the big music labels. Nearly £800 million was spent on recorded music in 2011. Commercial companies and wealthy artists got the lion's share of it.

Saskia also noted that Hargreaves did not properly consider creators' rights. Though moral rights do get mentioned.

There is an underlying false assumption behind a lot of the public debate on copyright that creators' rights are coincident with commercial entities interests. The Monopolies and Mergers Commission as far back as the mid 1980s found that the big music labels were engaged in monopolistic practices; and that they used their monopoly position to impose unfair contract terms on creators. Yet they concluded that this was not against the public interest.

The interests of creators and commercial intermediaries are not the same. So how do we construct a copyright system where intermediaries do get paid but creators get a better share of the spoils?

The next speaker was Mike Holderness, Chair of the Creators’ Rights Alliance (CRA). He explained that the CRA has about 100,000 members, many of whom are sole traders. The CRA are concerned about how we will get growth.

He asked the question: what do? And then answered by stating it involved overwhelmingly the work of sole traders. These individuals have very little bargaining power in dealing with the commercial intermediaries. Mike Holderness himself is a science writer.

Technological changes create massive possibilities e.g. to reach a worldwide audience but most of these possibilities are only theoretical. The changes and the possibilities provided to sole traders by disintermediation are welcome. But the problem is taking advantage of the changes because people trust big name brands.

Hargreaves concentrated too much on re-users and intermediaries (e.g. big search engines) as far as the CRA is concerned. It is hard to make a living as a professional creator. Wikipedia is a great example of what people will do for free but it's not reliable. We have to have reliable information produced by people who dedicate their working lives to doing it.

There has been a lot of controversy around the phone hacking scandal and we need to get journalists to take responsibility for their work. Yet they often have no control over how it is presented. The journalist researches and writes a story. It is then mangled by the editorial process at the newspaper where the first three paragraphs are rewritten to trot out the paper's editorial line. To get the story as it was intended to be conveyed you have some chance only if you start reading at the fourth paragraph. There are numerous examples of newspapers and magazines altering photographs e.g. Time Magazine's alteration of a photo of O.J.Simpson around the time of his arrest as a murder suspect making his skin look darker. An unaltered copy of the photo appeared simultaneously in Newsweek. The original photographer had no control over any of this. The president of the CRA herself had an article she wrote on gay marriage grossly distorted and misrpresented when published in the Gulf.

Publishers often have a standard creator rights waiver which writers are obliged to sign if they want their work published. So creators need an enforceable right to be named/accredited as happens in France. The UK has failed creators in the area of moral rights. Moral rights support the careers of individual creators.

These laws are not made for agents. Every kid in the country will be a published author, holding copyright in their contributions to Facebook, before they can vote. We therefore need to level the playing field in terms of relative bargaining power between individuals and large commercial services like Facebook.

As he then got the nod from the chair that his time was up, Mr Holderness concluded with a rapid "Libraries are a very wonderful thing!"

The third speaker was Gwen Thomas, Consultant to the Association of Photographers. Ms Thomas opened directly with a critique of the Hargreaves review suggesting it missed two key areas - contracts and moral rights. The Association of Photographers did a survey in 2007 of about 2500 members. 50% of respondents said that their bargaining power had diminished in the previous ten years. 40% had been forced into signing moral rights waivers and 24% had seen decline in attribution over the same period. 31% said the decline was getting worse.

So they believe we need to strengthen moral rights and equalise bargaining power of commissioners, creators and users.

When the Copyright Designs and Patents Act (CDPA), introducing extra protection for photographs, came into force on 1 August 1989 it was a mixed blessing. Nice in theory but that same day nearly all photographers got a letter from the big publishers including a contract to waive moral rights. They were obliged to assign the copyright in their photos to the publisher and waive their moral rights into the bargain. For every photographer refusing to assign copyright there is a queue of people prepared to do it.

Unlike for European colleagues UK law treats copyright like a property right. Therefore as property it is something you can give or sign away.

The UK needs to strengthen the Unfair Contract Terms Act 1977 which does not apply to intellectual property.

Moral rights are hugely important to photographers because derogatory treatment of their work is rife. Most professionals are aware of moral rights but not that they need asserting. Everyone is a photographer but most are not aware of their rights under the law.

There is a lot of talk about orphaned works but images become orphaned unintentionally. The original photographer knows they are not orphaned. Photographers can avail themselves of the economic benefits of lending rights when there is no name on the image.

Moral rights are incredibly important for reputations. The moral right to object to the derogatory treatment is hugely important (this applies equally to digital artists and illustrators). Images can be and are widely copied and mutilated on the internet and this can damage the career of a photographer. Misuse, distortion and doctoring of images of people can damage the people in those photos.

We need stronger moral rights. If we don't get them the UK photographic community will decline.

The problem with digital images is that the embedded metadata can be removed. Photographers use the internet to sell themselves but images are constantly lifted. The Association of Photographers calls for "effective sanctions against those who deliberately extract metadata." When I asked later if they were asking for specific new anti-circumvention provisions in law to cover metadata in digital photographs Ms Thomas indicated with a nod that yes that was what they were interested in.

Simon Indelicate of the Indelicates band was the final speaker. He began by explaining he found the idea of copyright weird and then proceeded to outline the genealogy of one of his own songs, Savages, from the album Songs for Swinging Lovers. He described the song as being one of his favourite creations which he would hate to see mistreated. The song draws inspiration from -

A section stolen from a poet who stole it from another poet which ended up sounding like something from The NeverEnding Story.

Samples from recordings made by a violinist

None of the parts were done by corporates. They were created by him being inspired by other creators. But he believes the resultant song is uniquely his and certainly uniquely important to him and his wife. Good art communicates and for that we need to be able to freely refer to our culture. Just like Milton freely referred to the Bible and Shakespeare. Creators need to be able to consume and use copyrighted materials.

He wants people to pay him for his creations but we need to recognise that our culture does not have the division between creators and consumers there used to be. Creation needs constant access - free and open access - and also a chain of recognition.

At this point the chairman, Alun Michael, called for questions from the floor, with an opportunity for the panel to respond at the end. The 'questions' mostly turned out to be statements rather than questions.

Q1. New technology is changing at an astonishing speed. Everyone has become a creator. Who needs to change fastest, intermediaries or legislators? (That, in fairness, was a question)

Q2. Could Gwen Thomas from the Photographers Association elaborate on how to draw the line between original work and what users can do with it? (Also a question. Pity Alun Michael didn't let the panelists respond at this stage. It might have set the tone for a dialogue.)

Q3. David Hammerstein of the TransAtlantic Consumer Dialogue (TACD) said copyright is not in harmony. Citizens violate copyright massively. Therefore we need to adjust the law to fit reality. He finds though he is almost reluctant to describe it as such a "luddite" resistance to this change. So at the point when we have the ability to digitise orphan works we get the EU constructing a law to prevent it. Copyright is almost absurd today. It is absurd that we need an international treaty to give blind and partially sighted people access to copyrighted works. 1.5 million Braille works can't be sent from the UK to India because it is illegal. It's very important to release orphan works and facilitate easy access for those with visual disabilities.

Q4. Paul Ellis, co-founder of Stop43, who successfully lobbied against photography provisions in the Digital Economy Act, said orphan works are only orphans as far as the discoverer is concerned. A photographer knows his own work is not orphaned. Calling the copying of orphaned works a victimless crime is nonsense. Copyright is a human right under Article 27 of the Universal Declaration of Human Rights. Creators have to be allowed to make money from the work we create. We can only do that through copyright.

Q5. A representative from the Open Rights Group asked Gwen Thomas if she could clarify whether it was moral rights or economic rights the Photographers Association was most concerned about. (Another question!)

Q6. A representative of the UK IPO mentioned they were working on a current government proposal that photographers should be equitably remunerated.

Q7. James Firth of Open Digital asked how the panel viewed the global jurisdiction issue particularly in the light of the two recent copyright extradition cases. (Note the Home Secretary, in the latest stage of the UK TVShack case, decided yesterday that student Richard O'Dwyer should be extradited to the US).

Q8. I asked Gwen Thomas if she was calling for a specific new anti-circumvention provision in law to cover meta data in digital photographs. She nodded.

Q9. Three or four (if EMI doesn't get rolled into Universal) music companies own 95%+ of the world's recorded music of the past 50 years. These middlemen are standing in the way of consumer money getting to creators. Transparency is important. We need clear audit trails of the cash flows.

Q10. Guy Fletcher of the Performing Rights Society (PRS) said they represent 75,000 writers and 5000 publishers. In answer to the point made by one of the speakers about the Monopolies and Mergers Commission, they also investigated the PRS and found them to be effective. About 60,000 of their writers don't make a living. Those 60k need the collective bargaining strength of the PRS. The Monopolies and Mergers Commission decided they were a necessary and benign monopoly. The PRS Board is run by creators and publishers. He welcomed the moral rights language in the 1988 copyright legislation. However the writing community suffer like the photographers. They bend to pressure and sign waivers.

Q11. A former MP and representative of the CRA asked Saskia Walzel of Consumer Focus when the interests of consumers should override those of creators. (Finished on a high with a question).

The panel then got the chance to respond in reverse order.

Simon Indelicate went first. He said the collecting agencies presented an interesting problem. When his band plays in small clubs in Germany those clubs pay large fees to the German collecting agency. As a result those clubs are barely financially viable. Yet his band never sees even a small proportion of the fees paid to the collecting society because they are too far down the food chain.

He believes we can improve the system with the aid of modern technology. The collecting agency system is too monolithic at the moment - everyone loses apart from Bono. On the points raised by Stop43 on unintended orphan works and moral rights, they are legitimate but all creators including Shakespeare stand on the shoulders of giants. Copyright's purpose is to ensure more culture is made. More culture is good for society and the Net is great at facilitating the creation of more culture. He doesn't like the idea of the law making the creation of culture more difficult.

He also has a problem with the claim that he has a right to make money doing what he does. As far as culture is concerned supply has exploded but demand has not kept pace. Yes photographers should get paid but they don't have a right to make a living from photography.

His final contribution addressed the first question - he didn't care if corporations (i.e. intermediaries) changed because their business models were already causing them to fail.

Whilst making his points he was subject to some heckling by Labour MP, Jim Dowd, who had originally been scheduled to be on the panel in his place. He responded to Mr Dowd robustly and was cheerfully supported in that endeavour by the chair, Alun Michael.

Next up was Gwen Thomas from the Photographers Association.
She was particularly keen to address the question from the Open Rights Group representative about whether they were primarily concerned about moral or economic rights. Moral rights were pre-eminent. The primary focus was integrity not money. But the building of reputation through the protection of moral rights enabled photographers to derive income from their work.

Mike Holderness from the Creators' Rights Alliance was next.
He has a problem with the corporation that scanned all the world's books without permission and put them online. A creator should have the right to object to the distortion of their work in a way which damages their reputation. He is pleased there is a sensible draft of a WIPO Treaty for an Improved Access for Blind, Visually-Impaired and Other Reading Disabled Persons. There were delays there because a lot of vested interests were trying to include crazy exceptions on the back of it.
Most importantly to round off Mr Holderness was emphatic about the need to level the playing field in terms of the relative bargaining power between individual creators and the corporations they do business with.

Saskia Walzel from Consumer Focus finished up the session for the panel.
She outlined some history explaining copyright was originally supposed to cover books and the law has been changed in response to changes in technology. In the UK we have had big changes in copyright law in 1911, 1956 and 1988. So it is not unusual that it gets changed to cope with new technology. It is the current rate of change of the technology that is the problem.

It takes about 3 years to update primary legislation. So we should make copyright legislation more technology neutral.

Creators should always be attributed as has been the case in most European countries since the beginning of the 20th century. That principle has not changed.

In the UK the time-shifting exception in 1988 has stood the test of time. Lots of language in the 1988 Act was technology specific (e.g. photocopying). Such language will not stand the test of time.

Creators are the first owners of copyright. They get that privilege so they can bargain with publishers. Shakespeare had no copyright but still made money. Copyright developed country by country. That's why Charles Dickens had so many problems with the US where so many publishers copied, printed and sold his books without ever paying him a penny. There was no mutual respect between countries or recognition of the copyrights of foreign authors until the Berne Convention was negotiated in the late 19th century.

We as a society have decided that rewarding creators is important. Some people are making money out of the copyright system. Too often these beneficiaries are not the creators. So we need to focus on reforming the contracts and licencing systems to ensure creators get a fairer share of the spoils.

Alun Michael then closed proceedings by expressing his admiration in principle for the notion of technology neutral laws. His concern is that technology makes everything unpredictable. Also that too often parliament is concerned with legislating to deal with specific problems of the day, rather than laying down blueprints of more general principles.

A few of closing notes:

1. Thanks to Consumer Focus for inviting me along.

2. I've attempted to report what was said accurately at this stage, rather than comment (with the exception being the comment about the way questions were handled). Regular readers will know I have a different perspective to a number of the views expressed.

3. It is irritating when the blogger spellchecker refuses to work on long posts - precisely when it is needed - and I have to cut and paste and check in an external word processor. If I've missed any typos let me know and I'll correct them.

Monday, March 12, 2012

The European Data Protection Supervisor (EDPS), Peter Hustinx, last week issued his opinion on the European Commission's data protection reform package. The Commission announced proposed changes to EU data protection rules in January, including a proposal for a Directive covering data protection in law enforcement. He is impressed with the intent of the new general data protection rules and simultaneously "seriously disappointed" (code for "appalled") at the carving out of a special anything goes directive for law enforcement. There is a decent summary of the opinion in the associated press release.

"On the package, Peter Hustinx, EDPS, says: "The proposed Regulation constitutes a huge step forward for the right to data protection in Europe. However, we are unfortunately still far from a comprehensive set of data protection rules on national and EU level in all areas of EU policy. The proposals are disappointing in the law enforcement area, and they leave many existing EU data protection instruments untouched, such as the data protection rules for the EU institutions and bodies and also all the specific law enforcement instruments...

"The proposed rules for data protection in the law enforcement area are unacceptably weak. In many instances there is no justification whatsoever for departing from the rules provided in the proposed Regulation. The law enforcement area requires some specific rules, but not a general lowering of the level of data protection."

The EDPS is concerned in particular with regard to:

the lack of legal certainty about the further use of personal data by law enforcement authorities;

the lack of a general duty for law enforcement authorities to demonstrate compliance with data

protection requirements;

the weak conditions for transfers to third countries;

the unduly limited powers of supervisory authorities. "

In relation to new general Regulation on data protection he also has some specific concerns on the details:

the possibilities for restricting basic principles and rights;

the possible derogation for transferring data to third countries;

the excessive powers granted to the Commission in the mechanism designed to ensure

consistency among supervisory authorities;

the new ground for exceptions to the purpose limitation principle.

As usual with Mr Hustinx it is a thoughtful comprehensive opinion and whereas I don't expect many but privacy anoraks to read and inwardly digest the full 85 pages, the two page executive summary should be compulsory reading for all EU citizens. Expect the Commission to liberally use and abuse that description of the proposed regulation as "a huge step forward for data protection in Europe" whilst simultaneously ignoring and engaging significant energies to circumvent the serious concerns raised in the opinion.